Several recent decisions of the Georgia Supreme Court indicate that the court may be willing to loosen the civil law of drainage rights in order to relieve local governments from their duties related to maintenance of storm water systems. In Kaplan v. City of Sandy Springs, the Supreme Court issued an opinion that held that a county cannot accept a developer's express dedication of storm water pipes to the public without a written deed instrument from the developer to the county. In City of Atlanta v Kleber, the court held that the statute of limitations to address flooding caused by a defective pipe ran from the date of the original installation of the pipe. These two opinions gave a county and a municipality means to avoid maintenance of pipe systems carrying public water from up stream development through private property owners' yards.
However, the cases stand in isolation with respect to their particular facts, and there are many other principles that were not discussed in the cases that still impose the obligation of easement maintenance for storm water pipes on the government. Georgia law is clear that the user of a drainage way has the obligation to maintain the drainage. Also, the Kaplan case only permitted Fulton County to escape system maintenance. In that case, the county had turned its streets and pipes over to the City of Sandy Springs upon that municipalities incorporation. Also, in Kleber, the court did not mention whether the pipe in need of maintenance was carrying water from the City of Atlanta storm water system or City streets.
Nevertheless, one cannot help but wonder if the Georgia Supreme Court is motivated out of policy to create precedents to help local governments escape financial burdens due to the enormity of the failing storm water systems installed in the North Georgia and Atlanta metropolitan area over the past three decades. Time is ticking on rusting pipes under many subdivisions, and someone will have to pay to foot the bill for their repairs to stop homes from flooding each time it rains.
A pretty basic question, but relevant to such easements when we talk about municipal costs. Who has the responsibility to maintain a drainage and sewer easement across private property, in terms of tree cutting, bush hogging mowing, etc, when the parcel is a big gully with the drain at the bottom?.
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